NewsWrap
for the week ending December 16, 2000
(As broadcast on This Way Out program #664, distributed 12-18-00)
[Written by Cindy Friedman, with thanks to Graham Underhill, Chris Ambidge,
GAIN (Gender Advocacy Information Network), Brian Nunes, Jason Lin, Rex
Wockner, Greg Gordon & Lucia Chappelle]
Anchored by Cindy Friedman and Greg Gordon
The Supreme Court of Canada this week ruled in the long-running case of
Canada Customs' abuses against Vancouver's gay and lesbian Little Sisters
bookstore. The small store relies on U.S. imports for 80 to 90% of its
stock, and since 1984 Canada Customs has seized more than 260 titles headed
there on grounds of obscenity. Many of those same titles crossed the border
to mainstream stores with no problems and some can even be found in the
Vancouver Public Library. Other gay and lesbian materials were held by
Customs to be obscene when nearly identical depictions of heterosexual acts
were allowed to pass. The trial judge who first heard the case in 1994 found
that Customs agents were systematically targeting Little Sisters' imports for
wrongful delay, confiscation, destruction, damage, prohibition, and
misclassification.
The Supreme Court was also very sympathetic to Little Sisters and highly
critical of Customs' actions, but its ruling did little to change them for
the future. It upheld the obscenity law as a "reasonable" infringement on
free expression rights, and it upheld almost all of the Customs law as well.
The one change it ordered is that it will now be up to Customs to prove that
an item is obscene, rather than the burden of proof being on the importer to
show it is not. That could mean Customs paying out significant damages for
its mistakes when importers go to court.
But to a six-member majority of the nine-member high court bench, it is not
the Customs law supporting obscenity seizures that is flawed but only its
implementation, and they left the law intact while calling on the department
to improve its performance. Three dissenters argued vigorously that the
extent of the abuses prove that the law is flawed in its failure to offer any
protections to free expression, and wanted to strike down Customs law as it
applies to expressive materials.
University of Toronto law professor Brenda Cossman, an expert in obscenity
law, called it a "profoundly disappointing decision."
Law professor Nicole LaViolette, speaking for the national group EGALE,
Equality for Gays and Lesbians Everywhere, called it a "partial victory."
She said, "The real victory in this is the Supreme Court of Canada
recognizing gays and lesbians have been unfairly treated in applying the laws
on obscenity."
Little Sisters manager Janine Fuller said, "My message to Canada Customs
today is that it's not business as usual any more. The Supreme Court has
told you definitively to clean up your act."
Effectively reversing a U.S. Supreme Court ruling relating to free
expression, a federal judge has found the University of Wisconsin's handling
of mandatory student fees unconstitutional. Many state universities in the
U.S. use similar systems.
For more than four years a group of Christian conservative students have been
attacking the UW fee system because it has forced them to give financial
support to groups they disagree with, including the Lesbian, Gay, Bisexual
and Transgender Campus Center. The actual contribution of a single student
to any given campus group is well under a dollar. Earlier this year in a
case named for plaintiff Scott Southworth, the U.S. high court unanimously
rejected the argument that the fee system constituted "forced speech" that
violated the students' First Amendment rights. It accepted instead the
University's argument that the fee system creates an "open forum" for a
diversity of views.
But the high court left a loophole that allowed a trial court to consider
whether the system of allocating the funds is truly "viewpoint-neutral". The
conservative students seized on that even though in the Southworth case they
had stipulated that the system was viewpoint-neutral. In a case named for
plaintiff Kendra Fry, U.S. District Court Judge John Shabaz, who had decided
for the plaintiffs in the Southworth case, found that, "To require University
of Wisconsin students to pay a fee to subsidize expressive speech without any
protection of the rights of students who object to the funded speech is a
violation of the First Amendment." He objected to the broad discretion
allowed to the student committee determining allocations, describing
committee members as acting as "government officials" and equating their
election to a campus referendum on funding student groups. Giving the
University sixty days to revise its system, he ordered an end to the use of
mandatory student fees to support "political and ideological activities".
The University has not yet decided whether to appeal.
There are no appeals left for Oklahoma lesbian Wanda Jean Allen, who is
scheduled in January to become the first African-American woman to be
executed since the U.S. reinstated the death penalty in 1976. She will be
the first woman executed in Oklahoma since it became a state. Unimpressed by
her plea to "Please let me live" and the presence of about 100 demonstrators,
Oklahoma's Pardon and Parole Board this week voted 3-to-1 to let her sentence
stand. Oklahoma Governor Frank Keating has indicated he will not intervene.
Allen was convicted of first degree murder and sentenced in 1989 after
shooting to death her partner Gloria Leathers in front of a police station.
The women had met in prison where Allen was serving time for manslaughter
after shooting to death her previous partner Dedra Pettus. A number of gay
and lesbian civil rights groups had joined death penalty opponents in taking
up Allen's cause. They say that as a result of childhood brain injuries she
has a low IQ and a tendency to become confused and act impulsively, problems
which were diagnosed early in her life but were never treated, and which did
not come to light until after her trial. They also say she had inadequate
legal representation, in particular a lawyer who had never before tried a
capital case, who tried to withdraw because of that but was denied by the
court. They allege the trial was tainted by classism, racism and homophobia.
British judges this week received some basic training against homophobia,
with the Judicial Studies Board's publication of the second installment of
its "Equal Treatment Bench Book". The book is distributed to all 4,000
full-time judges and tribunal chairs in England and Wales, designed to
sensitize this group overwhelmingly composed of older white heterosexual
males of higher socioeconomic classes to the experiences of others. The
material on sexuality warns against stereotyping and assumptions that can
lead to offense and injustice. Some of its specific lessons are: that
homosexuality is not an illness and not contagious; that it has nothing to do
with pedophilia and poses no special risk for abusing children; and that for
transgendered people, cross-dressing can be an "inescapable emotional need."
It also notes that if gays and lesbians appear less than candid, judges
should remember that it may represent a lifetime of fear of exposure.
Bullying in schools was also taken on in Britain this week, as the
Education Department issued new guidelines called "Don't Suffer in Silence".
The materials include a specific discussion of "bullying because of perceived
sexual orientation." Education Secretary David Blunkett said he wanted never
again "to hear that a school denies the fact that bullying takes place within
their classrooms or their playground, never again to hear a parent saying
they were ignored or that someone was too busy to do something." He urged
victims to tell their parents and teachers. The new guidelines differ from
those issued in 1994 by calling for the use of suspensions and expulsions of
bullies in cases involving violence or sexual assault.
A lesbian in the Australian state of Victoria has conceived through in
vitro fertilization for the first time since a Federal Court struck down the
state's restriction of reproductive treatment to women in relationships with
men. That highly controversial decision is being appealed by the Australian
Catholic Bishops Conference, but this month the Australian Government dropped
from its legislative priorities a bill to override it. Two non-lesbian
single women have also conceived by IVF in Victoria, while four more lesbians
and eighteen other non-lesbian single women are currently undergoing
treatment. All of the lesbians are in long-term relationships.
Domestic partners will be able to receive spousal benefits from two more
major U.S. employers, America Air West and communications giant BellSouth.
America Air West is the eighth of the top ten air carriers in the U.S. to
give benefits to domestic partners, and they'll be available regardless of
gender. BellSouth, a Fortune 100 company, is the last of the so-called "Baby
Bells" created when Bell Telephone was broken up to offer the benefit, which
will be available only to gay and lesbian couples.
And finally... A new employment opportunity has emerged for India's hijras.
Although often translated as "eunuchs," most hijras are not castrated males
but transsexuals, transgenders, cross-dressers and gay men. Only now
emerging into the mainstream culture, they've long been marginalized as an
outlaw group, surviving as beggars, entertainers, and casters of blessings
and curses. It's the general public's revulsion for their campy antics and
fear of their curses that has suited them for their new role as debt
collectors. India's legal system has a tremendous backlog of debt cases
despite the addition of specialized courts to hear them. Collection agencies
found that when they sent traditional strong-arm types to debtors, they
themselves were often becoming liable to assault claims. Now a number of
banks and other firms are sending hijras instead, finding they have a high
rate of success as small businesses are eager to be rid of their embarrassing
presence. The hijra collectors try persuasion, noisy taunting and curses.
When all else fails, they threaten to strip.